CITATION: Hanif v. College of Veterinarians of Ontario, 2021 ONSC 1819

DIVISIONAL COURT FILE NO.: 019/70

DATE: 20210312

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Dambrot, Penny and Favreau JJ.

BETWEEN:

DR. KHAWAR HANIF, Appellant

– and –

COLLEGE OF VETERINARIANS OF ONTARIO, Respondent

Khawar Hanif on his own behalf

Bernard C. LeBlanc and Maya Pearlston for the Respondent

HEARD: March 11, 2021

REASONS FOR JUDGMENT

Penny J.

Overview

[1] This is an appeal by Dr. Hanif from the penalty and costs order of the Discipline Committee of the College of Veterinarians of Ontario. The order was made following a re-hearing restricted to penalty and costs which was ordered by the Divisional Court following the appellant’s partially successful appeal of certain findings of professional misconduct. The appellant has also brought a number of preliminary motions. On March 11, 2021, the Court dismissed the preliminary motions and the appeal with reasons to follow. These are those reasons.

Background

[2] There is a long procedural history to this matter which is reviewed in some detail in the factums of both parties. For our purposes, the following abbreviated outline is sufficient.

[3] The appellant was charged with allegations of professional misconduct in relation to two separate incidents involving his treatment of household pets. These are referred to in the material as the Schilbe (the owner of a cat named Cleo) matter and the Schmidt (the owner of a dog named Scully) matter.

[4] After 11 days of hearing which took place from 2008 to 2010, the first Discipline Committee found the appellant guilty of one count of professional misconduct in the Schilbe matter, for prescribing dog flea medication to the cat. The College dismissed all other allegations of professional misconduct.

[5] The College appealed to the Divisional Court from the acquittals, essentially on the basis of inadequate reasons. No appeal was taken by the appellant from the single finding of professional misconduct in the Schilbe matter. The Divisional Court in the first appeal (2011 ONSC 1155) found that the reasons of the original Committee were inadequate and remitted the matter back to the College before a different Discipline Committee for a new hearing.

[6] The new hearing took place before a differently constituted Discipline Committee over 20 days in 2010 to 2012. In October 2013, the second Discipline Committee found the appellant guilty of professional misconduct in respect of the allegations of professional misconduct in both the Schilbe and the Schmidt matters.

[7] Following a further hearing on penalty and costs, in October 2014 the Committee ordered that the appellant’s licence be suspended for four months and that he pay $73,000 on account of the College’s costs of the hearing.

[8] The appellant appealed these liability and penalty decisions to the Divisional Court. In May 2017, the Divisional Court (2017 ONSC 397) dismissed the appellant’s appeal regarding the Schmidt matter but allowed his appeal regarding the Schilbe matter. The Court set aside the findings of professional misconduct in relation to the Schilbe allegations. As a result of the divided success on the appeal, the Divisional Court ordered that the issues of penalty and costs be reconsidered by “the Discipline Committee panel”.

[9] The appellant’s motion for leave to appeal the second Divisional Court decision to the Court of Appeal for Ontario and application for leave to appeal to the Supreme Court of Canada were denied. The rehearing on penalty and costs took place in April 2019. At the outset of the hearing, the appellant brought a number of motions relating to the merits of the case against him and to procedural issues that he had raised in his earlier appeal.

[10] The Committee dismissed the appellant’s motions and released its decision on penalty and costs. The Committee ordered that the appellant’s license be suspended for one month and awarded costs in favour of the College of $65,000 ($50,000 for the original hearing and an additional $15,000 on account of the appellant’s unsuccessful post-appeal motions).

Standard of Review

[11] This proceeding is an appeal as of right under s. 35 of the Veterinarians Act. The general standard of review on appeal is correctness on all extricable issues of law and palpable and overriding error on all issues of fact and mixed law and fact. However, the present appeal is from findings on penalty and costs. On an appeal from penalty, the appellant must show that the tribunal made an error of principle or that the penalty was “clearly unfit”. The discretion to award costs is broad. The court will interfere with an award of costs on appeal only if there is an error in principle or the award is “clearly wrong”.

The Preliminary Motions

[12] The appellant raised a number of preliminary issues apart from his appeal from the rehearing decision on penalty and costs. These include whether:

(a) the College was required to provide reasons for its referral to discipline;

(b) the allegations against the appellant were somehow “altered”;

(c) the conduct of the prosecution was inappropriate;

(d) claims of solicitor client privilege regarding communications between the College and its counsel were an “abuse”; and

(e) various provisions of the Veterinarians Act and the College’s bylaws are unconstitutional as being contrary to the Canadian Charter of Rights and Freedoms.

[13] None of these arguments have anything to do with penalty or costs. Many of these arguments were previously raised on the previous appeal before the Divisional Court and rejected. Those that were not could have been raised previously and no reasonable excuse for having failed to do so has been established. Further, none of these issues were referred back to the Committee for reconsideration by the Divisional Court. The appellant’s arguments on all these issues are without merit. Any request for relief based upon these arguments is dismissed.

[14] A particular comment is warranted with respect to the appellant’s allegations of misconduct against College’s prosecutorial counsel, Mr. LeBlanc. The bulk of the appellant’s factum, and of his oral submissions at the hearing, concerned these allegations. Three particular observations are called for. The first is that these allegations were previously raised in the appellant’s appeal of the Discipline Committee’s findings of professional misconduct against him to this Court in 2017. These allegations were soundly rejected (2017 ONSC 397 at paras. 49 - 55). No aspect of those allegations concerns penalty or costs. No issue was referred back to the Committee that warranted, in any way, any attempt to reiterate or re-argue those allegations. It was completely improper for the appellant to purport to do so. Second, the appellant’s allegations are based on a serious misunderstanding of the role of discipline counsel in a regulated health professions discipline case and of the law governing counsel’s conduct in that role. Third, the record is devoid of any factual basis to support these allegations. They are based on no more than the appellant’s bald allegations, speculations and innuendo.

[15] The appellant further argues that the College should have appointed a new panel of the Discipline Committee to conduct the rehearing on penalty and costs. However, the Divisional Court expressly remitted penalty and costs back to “the Discipline Committee panel for a reconsideration”; that means, unambiguously, the panel of the Discipline Committee from which the appellant had brought his partially successful appeal. In a similar vein, the appellant also argues that the panel members, Saul and Klymus, were biased by virtue of their prior involvement in his case. Tribunals enjoy a strong presumption of impartiality. The onus is on the appellant to establish bias or a reasonable apprehension of bias. The College and the Discipline Committee acted in accordance with the express order of the Divisional Court in the conduct of the rehearing. There is no evidence to support any basis for an allegation of bias. The appeal on this issue is without merit.

[16] The appellant argues that the constitution of the Discipline Committee panel to hold his rehearing was improper because Dr. Kozuch (a third member of the panel who sat on the Committee presiding over the second merits hearing) was no longer available. Section 28(6) of the Veterinarians Act specifically contemplates circumstances where a discipline committee member is no longer able to participate. Remaining members are authorized to complete the hearing “despite the absence of a quorum.” There is no merit to the appellant’s argument.

[17] The appellant’s motion for leave to present fresh evidence is puzzling. First of all, at the rehearing on penalty and costs, the appellant was entitled to put forward evidence relevant to penalty and costs. He did not need leave to do so. Second, the appellant has not identified anywhere what the new evidence is. Third, to the extent new evidence was potentially relevant to his appeal from the findings of misconduct, the time for a motion to introduce that evidence was in the context of his 2017 appeal to the Divisional Court, not on the rehearing of penalty and costs or his appeal from that decision to this Court. Finally, the appellant has manifestly failed (indeed, he has not even attempted) to meet the test for new evidence on appeal in any event. The Discipline Committee committed no error of law or palpable and overriding error of fact in dismissing the appellant’s motion for new evidence. His appeal from this ruling of the Committee is also without merit.

[18] This brings me to the main issues on appeal.

Penalty

[19] The Discipline Committee had originally levied a four month suspension. On rehearing following the appeal and dismissal of the Schilbe allegations, the Committee reduced the suspension to one month.

[20] As a result of the appellant’s focus on his preliminary motions and the other issues referred to above, the appellant made no written submissions in his factum as to why the one-month suspension (and certain other collateral requirements (such as re-education, practice review, etc.)), involved an error in principle or were clearly unfit.

[21] In oral argument, the appellant made two submissions. First, he argued, based on summaries of Complaint Committee decisions regularly published by the College, that his penalty was excessive when compared to many of the cases in which complaints were resolved without the need for a referral to discipline. No credence can be given to this argument. The discretion of the College to decide which cases should be referred to discipline is not on trial here. Further, the results of these Complaint Committee cases are simply not comparable to penalty decisions based on a finding of professional misconduct following a contested hearing.

[22] Second, the appellant argued that the educational and practice review requirements, which make up part of his penalty, are obligations he might have undertaken voluntarily without the need for two lengthy hearings. I fail to see how that, even assuming it to be true, would in any way render the order for educational and practice review requirements wrong in principle or clearly unfit.

[23] The appeal from penalty is dismissed.

Costs of the Rehearing

[24] The appellant submits that the Committee erred in its costs award in the following two basic respects:

(1) failing to find that the commencement of the proceeding was not warranted and thus, failing to recognize the appellant’s right to claim legal costs for the dismissed Schilbe complaint and for the original Committee decision (later reversed on appeal) which had acquitted him of almost all of the allegations; and

(2) the final costs amount awarded against the appellant was irrational because the findings in respect of the Schilbe complaint, which was the more serious of the two complaints, were dismissed.

[25] As noted earlier, the Court affords significant deference on costs. The appellant has failed to show that the Committee’s decision on costs is founded on an error in principle or that it is “plainly wrong”.

[26] The Committee did consider the appellant’s request for costs in respect of the first hearing and the largely dismissed charges against him in the Schilbe matter in the second hearing. However, the Committee made a finding of fact that the appellant had not shown that the commencement of these proceedings was unwarranted. This finding foreclosed the Committee from making any award of costs against the College (s. 30(6) of the Veterinarians Act). There was ample basis for the Committee’s conclusion, including the first Divisional Court order directing a rehearing of essentially all the allegations and the second Divisional Court order dismissing the appellant’s claims of breach of procedural unfairness, bias and prosecutorial misconduct.

[27] The Committee’s decision on the quantum of costs reflects a reduction in costs, on account of the reversal of the Schilbe complaint findings, from $73,000 to $50,000. However, additional costs of $15,000 were then awarded for the rehearing on penalty and costs as a result of the conduct of the appellant in pursuing significant, unmeritorious motions at the rehearing itself.

[28] There is nothing irrational about the Committee’s findings on quantum. No error of principle has been shown and the award is not plainly wrong.

Costs of the Appeal

[29] As we said at the hearing, it is clear that the appellant feels deeply aggrieved by the long and somewhat tortuous course of these proceedings. While we have some sympathy for the appellant in this regard, the fact remains that he has contributed to the length and cost of these proceedings through his own conduct. In particular, while the Discipline Committee found that the costs originally levied against him should be reduced on account of his success on appeal regarding the Schilbe matter (a reduction of $23,000), as mentioned above, it further increased the costs by an award of $15,000 regarding the appellant’s unmeritorious preliminary motions.

[30] Much time and energy has been spent on the reiteration and re-argument of matters previously decided or not properly raised on the penalty and costs reconsideration hearing and appeal. There needs to be some consequence to the appellant’s persistent and unrepentant pursuit of such matters. In the circumstances, we award a similar sum as that levied by the Committee. Costs of this appeal are fixed and payable to the College in the amount of $15,000 (all inclusive).

Penny J.

I agree _______________________________

Dambrot J.

I agree _______________________________

Favreau J.

Released: March 12, 2021

CITATION: Hanif v. College of Veterinarians of Ontario, 2021 ONSC 1819

DIVISIONAL COURT FILE NO.: 019/70

DATE: 20210312

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Dambrot, Penny and Favreau JJ.

BETWEEN:

DR. KHAWAR HANIF, Appellant

– and –

COLLEGE OF VETERINARIANS OF ONTARIO, Respondent

REASONS FOR JUDGMENT

Released: March 12, 2021